In The Marriage of Patsalou

[1994] FamCA 118

Between: George Patsalou Appellant Husband and Carolyn Joan Patsalou Respondent Wife [1994] FamCA 118 (27 October 1994)

FAMILY COURT OF AUSTRALIA

BETWEEN: GEORGE PATSALOU

APPELLANT HUSBAND

AND CAROLYN JOAN PATSALOU

RESPONDENT WIFE

Appeal No. NA23 of 1994

File No. DN743 of 1993

Number of pages - 9

Custody - Practice And Procedure

COURT

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA

BAKER(1), KAY(2) AND TOLCON(3) JJ

CATCHWORDS

Custody - Welfare of the child - Violence towards mother

Custody - Discretion

Practice And Procedure - Reasons for Judgment - Reference to writings of an expert nature The parties married on 26 July 1986 and separated on 28 July 1993. There are two children of the marriage: T Hayley Patsalou, born 21 September 1988, aged 6 years and C John Patsalou, born 23 June 1990, aged 4 years.

In November 1991, the wife obtained a restraining order against the husband. On 19 January 1994 the wife obtained a further restraining order against the husband claiming that he was "continually ringing" her and "being abusive" and that he made threats to kill her.

Interim orders were made in the Family Matters Court at Darwin on 15 March 1994 pursuant to which the wife was granted interim custody of the children and the husband reasonable access.

At the trial, the husband called three witnesses all of whom were employed to assist with the responsibilities associated with the children and the home. They were all critical of the wife's parenting capacity. However, the trial Judge concluded that the evidence of these witnesses had to be seen in the overall context of the family's arrangements, the struggle to make ends meet and the deteriorating relationship of the parties. She concluded "I do not consider that anything arises out of the evidence of these three witnesses which gives any cause for lasting or profound concern".

Mr Howard (the psychologist who prepared the Family Report) gave a more positive picture of the wife's parenting skills. He stated that she is a "warm, caring mother". The trial Judge accepted these comments and concluded that the wife's performance as a parent, though certainly less than "perfect", is not such as to be outside acceptable bounds or to warrant deep criticism or censure in appraising it".

The trial Judge accepted the wife's evidence that prior to the separation in November 1991, the husband had been "hitting" her "on a regular basis". On a number of occasions, the children were present. The trial Judge stated that the denigration of one parent by the other and the perpetration of violence by that parent against the other is of importance when assessing where the interests of the children lie and what future arrangements might best advance their welfare. Her Honour noted that the effect upon children of inter-spousal violence is now the subject of a considerable body of research and that such effects may be profound and long-lasting. Her Honour listed some recent articles on the subject.

The Judge concluded that the wife had a "superior capacity to parent the children mindful of their need to maintain their relationship with their other parent and their respect for that parent". She stated that the weight which "ought to be accorded to these latter considerations is greater than that which attaches to the criticisms made of her short-comings in the day-to-day care of the children". This balance led Her Honour to conclude that the children's welfare will be best promoted by remaining in the custody of the wife.

On appeal, it was submitted on behalf of the husband that:-

1. The manner in which the trial Judge dealt with the violence and

denigration of the Respondent by the Appellant was inappropriate

and contrary to law.

2. The trial Judge erred in referring to the body of research as

the

articles cited did not constitute evidence before her and the

parties were not invited to make submissions with respect to

them.

3. The reasons for the judgment were not supportable by the

evidence

particularly when one takes into account the evidence given by

the

Appellant's own witnesses.

Held, per curiam, in dismissing the appeal:- 

1. Allegations of domestic violence are relevant matters to be 


taken

into account in custody and access proceedings. Persons who

indulge

in such behaviour present as poor role models for children. The

approach taken by the trial Judge was consistent with authority.

Jaeger (1994) FLC 92,492 applied.

2. The trial Judge did not extrapolate from any of the cited

articles

nor did she refer to any particular point contained therein. In

addition, she specifically stated that there was no evidence

before

her of the effect upon the children of the violence or

denigration

alleged against the husband.

3. The findings were open to Her Honour on the evidence and are

entirely consistent with it. Her Honour referred to the Family

Report and accepted the conclusions of the psychologist. There

is

no basis for an interference with Her Honour's findings.

Held, per Kay J:- 

It is within Her Honour's duties to make comments of a societal 

nature. The writings of an expert nature which supported her 


views

were not raising contentious points, rather they were simply

supporting her statements of the obvious.

Ordered:- 

1. That the appeal be dismissed. 

2. That the Appellant pay the costs of the Respondent, of and 

incidental to the appeal, fixed at $2,000. 


HEARING

BRISBANE, 27 October 1994

27:10:1994

Mr R Galloway of Counsel, instructed by Messrs Barry and Nilsson, Solicitors, (as town agents for Messrs Cecil Black, Barristers and Solicitors) appeared on behalf of the Appellant Husband

Mr Baston of Counsel, instructed by Messrs Waters James McCormack, Barristers and Solicitors, appeared on behalf of the Respondent Wife

ORDER

Appeal dismissed.

DECISION

BAKER J This is an appeal from orders made by Moore J on 19 July 1994 in relation to the guardianship of, custody of, and access to the two children of the marriage, T born 21 September 1988, and C, born 23 June 1990.

2. The parties commenced cohabitation in 1983 and married on 26 July 1986. There are two children born of the union, T, as I have said, now aged six, and C, now aged four.

3. In or about the year 1990 the parties commenced a business which was primarily concerned with the selling of fruit and vegetables from a truck parked on a highway in front of their property. They later sold pickles and preserves. This business, although operated primarily by the husband, was nevertheless partly operated by the wife who, in addition, sold products through the Amway organisation Both parties also appear to have operated stalls at markets from time to time.

4. In November 1991 the wife obtained a restraining order against the husband and the parties separated from November of that year until April of the following year. Although the husband moved out during this period, he frequently visited the property. The final separation occurred on 28 July 1993 when the wife left the family home and moved to rented accommodation at Palmerston, where she has continued to reside.

5. At the time of the separation it was apparently agreed that the children would spend four days each week living with their mother and three days with the father. These arrangements apparently worked until November of 1993 when the husband refused to return the children to their mother. For a time, access between the children and their mother was upon terms set by the husband and for a period was exercised at his residence and in his presence. The trial judge accepted the evidence of the wife that she had indeed endeavoured to arrange to see her children, but that the husband had refused to allow it. During this time the husband enrolled T at a new school, apparently without consulting the wife.

6. On 19 January 1994 the wife obtained a further restraining order against the husband claiming that he was "continually ringing her" and "being abusive", and further that he had made threats to kill her. Interim orders were made in the Family Matters Court in Darwin in the Northern Territory on 15 March 1994 pursuant to which the wife was granted interim custody of the children and the husband reasonable access.

7. In the meantime, cross-application in relation to the custody of and access to the children had been pending before this court and eventually those applications came on for hearing before the trial judge on 15 and 16 June 1994.

8. On 19 July 1994 her Honour delivered her reasons for judgment and made orders, the effect of which was that the parties were granted joint guardianship of the two children with the wife having custody and the husband reasonable access defined in accordance with those orders. It is from the orders of 19 July 1994 that the husband now appeals.

GROUNDS OF APPEAL 

9. The notice of appeal contained some 14 grounds, most of which relate to the weight which the trial judge did or did not give to the evidence which was before her. In his written submissions and in the course of his oral submissions, however, the appellant's counsel, Mr Galloway, raised in effect the following three issues:- 


(a) That the manner in which the trial judge dealt with violence

inflicted upon the respondent by the appellant and the denigration

of

the respondent by the appellant was inappropriate and contrary to

law;

(b) That the body of research to which the trial judge referred in

her

reasons for judgment was not the subject of any evidence before her

and the parties were not invited to make any submissions in

relation

to it;

(c) That her Honour's reasons for judgment were not supportable

having

regard to the evidence that was before her, particularly when one

takes into account the evidence given by the appellant's witnesses.

10. It is appropriate to deal with each of the above issues seriatim and make the appropriate findings and comments in relation thereto.

(a) That the manner in which the trial judge dealt with the violence inflicted upon the respondent by the appellant and the denigration of the respondent by the appellant, was inappropriate and contrary to law. 

11. The making of derogatory or denigrating remarks by one party to another and the inflicting of physical violence by one party on the other are, in my view, relevant matters to be taken into account in cases concerning the custody of and access to children. Any person who indulges in such behaviour, in my opinion, presents a poor role model indeed for children and his or her suitability as a custodial parent must be very much in doubt.

12. Her Honour made a finding to that effect on page 29 of the Appeal Book in the following passage:- 


"It also reflects poorly upon the assailant's capacity to provide

the

children with a positive role model for their own behaviour and

methods of resolving disputes and dealing with tensions and

stress."

13. The trial judge accepted the wife's evidence in relation to these matters, as she was clearly entitled to do, and therefore no error can be demonstrated.

14. The Full Court of this court in Jaeger and Jaeger (1994) FLC 92-492 held that allegations of domestic violence were relevant considerations in cases involving the custody of and access to children and ought to have been investigated in that case by the trial judge. It seems to me therefore that the approach which her Honour took was not only consistent with authority, but very much consistent with the reality of the approach which trial judges should undertake when hearing custody and access disputes.

(b) That the body of research to which the trial judge referred in reasons for judgment was not the subject of any evidence and the parties were not invited to make any submissions in relation to it. 

15. It is this ground which is the gravamen of this appeal. The appellant complains that the research referred to on page 30 of the Appeal Book was adopted by the trial judge without the parties having had the opportunity to comment upon it or of placing other research, perhaps of a contrary nature, in evidence.

16. The trial judge, in my opinion, did not use the research to support her findings. On page 29 of the Appeal Book the trial judge said:- 


"Moreover the effect upon children of inter-spousal violence is now

the subject of a considerable body of research. This shows that,

though the effects may vary depending on a number of variables,

including age and stage of development of a child and frequency and

extent of a violence, they may be profound and long lasting."

17. Then, at the top of page 30, her Honour refers to various articles as follows:-

Blanchard A, Molloy F and Brown L (1992) 'I Just Couldn't Stop

Them':

Western Australian Children Living With Domestic Violence, Curtin

Univ. School of Social Work, Perth.

Blanchard A (1993) Violence in Families: The Effects On Children,

Family Matters, 34, 31-36.

Bookless-Pratz C and Mertin P (1990) The Behavioural and Social

Functioning of Children Exposed to Domestic Violence: A Pilot

Study,

Children Australia 15(3) 4-7.

Carlson B (1986) Children's Observations of Interpersonal Violence,

in

Roberts A (ed) Battered Women and Their Families, Springer, New

York,

147-167.

Fantuzzo J and Lindquist C (1989) The Effects of Observing Conjugal

Violence on Children: A Review and Analysis of Research

Methodology,

J Fam Violence 4(1) 77-94.

Jaffe P, Wolfe D and Wilson S (1990) Children of Battered Women,

Sage,

Newbury Park, Cal.

Morgan J and Zedner L (1992) Child Victims, Clarendon, Oxford.

Nolan C (1991) Family Violence - a Child Protection Issue. In

Family

Violence Professional Education Taskforce, Family Violence:

Everybody's Business, Somebody's Life, Family Violence: Eve,

Federation Press, Sydney.

18. The trial Judge did not, however, extrapolate any views or comments from those articles or otherwise rely upon them in any way. Indeed, she was careful on page 30 to record:-

"There is no evidence of the effect, if any, of misbehaviour upon

the

children in this case. There then follows a passage which contains

her

Honour's critical findings in relation to this aspect of the trial.

Yet while there is much evidence of a positive nature of Mr

Patsalou's

interaction with the children as a parent and his devotion as a

father, his conduct towards the children's mother in physically

assaulting her and making derogatory, denigrating remarks either to

her or about her to the children or to others within her circle of

friends and acquaintances, does not establish him as a consistently

desirable role model for the children and leads to questions about

his

capacity to promote the children's relationship with their mother

in

the future and his capacity to contribute positively to their

balanced

development. This has important implications in an assessment of

his

capacity to effectively parent these children in a positive way in

the

future."

19. Her Honour's assertion that the appellant's conduct, as described in the above passage, has important implications in an assessment of his capacity to effectively parent his children, was correct, in my view.

(c) That her Honour's reasons for judgment were not supportable having regard to the evidence that was before her, particularly when one takes into account the evidence given by the appellant's own witnesses. 

20. The trial judge in a careful and well constructed judgment dealt with all relevant issues and considered the various paragraphs referred to in s64(1) of the Act. In particular, she referred specifically to all the witnesses who gave evidence and identified on page 13 the various issues she found it necessary to consider in relation to each party's parenting capacity.

21. Having dealt with all these issues and having considered the contents of the family report, her Honour's reasoning process as she reaches her decision in relation to the matters in dispute appear in the following passage on page 37 of the Appeal Book:- 


"Overall I am satisfied that both parents would provide adequate

physical environments for the children. Each would be concerned to

ensure their education as commensurate with their abilities and

each

would provide age-appropriate entertainment for their on-going

development. I do not have any concerns about these sorts of

matters

arising from the evidence.

While Mrs Patsalou's parenting has attracted criticism, I am

ultimately left with the greater concern arising from my assessment

of

the limited ability Mr Patsalou has to separate his own needs from

those of the children, or to have sufficient insight into the

impact

of his behaviour upon their welfare. Moreover I am satisfied that

Mrs

Patsalou has a superior capacity to parent the children, mindful of

their need to maintain their relationship with their other parent

and

their respect for that parent. I am of the view that the weight

which

ought to be accorded to these later considerations is greater than

that which attaches to the criticisms made of her shortcomings in

the

day to day care of the children, their implications for the

children's

well-being and development being more profound.

It is this balance which has prompted me to conclude that the

children's welfare will be best promoted by remaining in the

custody

of their mother. I am satisfied that within the ambit of their

mother's primary care, they will have the better opportunity for a

more balanced, rounded development. I appreciate that Mr Patsalou

has

a good many supports through his extended family, particularly his

mother, and that this would provide a supportive framework for the

children were they to be in his care. Yet, by the orders I will

make

they will continue to spend extended periods of time in that

environment and will thereby be able to continue their relationship

with their paternal grandmother who, apart from their parents, is

the

other significant person in their lives.

For these reasons I am of the view that the children's welfare will

be

best advanced by remaining in the custody of their mother with

regular

access to their father. The orders for access will provide the

children with weekly contact with the father and his household."

22. Those conclusions, in my view, follow consistently from her Honour's findings in relation to evidentiary matters, and I am unable to find any error of approach. Her Honour referred extensively to paragraphs from the family report, and accepted the evidence which the author of that report gave, and the conclusions which she reached. Although Mr Howe did not indicate specifically which was the preferred parent, the tenor of his report was that the respondent was the more sensitive to the children's needs, and had adopted a less confrontational attitude in relation to access in particular, and the parties inter-personal relationships in general, than had the appellant.

SUMMARY AND CONCLUSIONS 

23. This is an appeal from a discretionary judgment, and the parameters within which an intermediate court of appeal, such as the Full Court of the Family Court, must operate has been defined by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499. It is apposite to restate the oft quoted passage which appears on page 504 of that report, and I now do so:- 


"The manner in which an appeal against an exercise of discretion

shall

be determined is governed by established principles. It is not

enough

for the judges comprising the appellate court to consider that if

they

had been in the position of the primary judge they would have taken

a

different course. It must appear that some error has been made in

exercising the discretion. If the judge acts upon a wrong

principle,

if he allows extraneous or irrelevant matters to guide or affect

him,

if he mistakes the facts, if he does not take into account some

material consideration, then his determination should be reviewed.

The

appellate court may exercise its own discretion in substitution for

his if it has the materials for doing so. It may not appear how the

primary judge has reached the result embodied in his order, but if

upon the facts it is unreasonable, or plainly unjust, the appellate

court may infer that in some way there has been a failure properly

to

exercise the discretion which the law opposes in the court at first

instance. In such a case, although the nature of the error may not

be

discoverable, the exercise of the discretion is reviewed on the

ground

that a substantial wrong has, in fact, occurred."

24. In relation to matters of custody and access, Stephen J in Gronow and Gronow [1979] HCA 63; (1979) 144 CLR 513, at page 519 said:-

"The constant emphasis of the cases is that before reversal an

appellate court must be well satisfied that the primary judge was

plainly wrong, his decision being no proper exercise of his

judicial

discretion. While authority teaches that error in the proper weight

to

be given to particular matters may justify reversal on appeal, it

is

also well established that it is never enough that an appellate

court

left to itself would have arrived at a different conclusion. When

no

error of law, or mistake of fact is present, to arrive at a

different

conclusion which does not of itself justify reversal can be due to

little else by the difference of view as to weight. It follows that

disagreement only on matter of weight by no means necessarily

justifies the reversal of the trial judge. Because of this, and

because the assessment of weight is particularly liable to be

affected

by seeing and hearing the parties, which only the trial judge can

do,

an appellate court should be slow to overturn a primary judge's

discretion decision on grounds which only involve conflicting

assessments of matters of weight."

25. In the present case, the trial judge had the singular advantage of hearing and observing the parties and their witnesses as they gave their evidence, and was therefore able to assess their personality, character and demeanour. A perusal of the evidence leads me to conclude that the trial judge's findings were not only open to her on the evidence, but entirely consistent with it.

26. Adopting then the principles of law to which I have just referred, there can be no basis for interfering with her Honour's findings either in relation to the facts, or concerning credit.

27. For all the above reasons, therefore, in my opinion the appeal must fail.

28. The order of the court is that the appeal be dismissed.

29. The respondent's counsel seeks an order that the appellant pay the respondent's costs of and incidental to the appeal. As has been said before, s117(2A) applies to this court just as much as it does to trial courts, and I therefore make the necessary findings concerning the subparagraphs of that section.

30. The appellant is not on legal aid, whilst the respondent is, although the fact that the respondent is on a grant of legal aid does not and cannot preclude this court from making any order for costs in her favour.

31. Both parties would appear to be in a somewhat parlous financial position, however the appellant is working and in receipt of income.

32. The appellant has been wholly unsuccessful in relation to this appeal, and although Mr Galloway planned a strong argument on his client's behalf, it really, at the end of the day, proved to have little merit. It seems to me that this is a case where costs should follow the event, and the court is therefore of a mind to order the appellant to pay the respondent's costs which we fix at $2,000.

KAY J I agree with the reasons given by the presiding judge. The major criticism by counsel on behalf of the appellant concerned the passages which appear at page 29 of the appeal book, where her Honour makes comment on the possible effect of violence upon children, and on the impression that violent behaviour creates as to determining whether the perpetrator of the violence is an appropriate role model. Her Honour is appointed to this court by reason inter alia of her 'training, experience, and personality', (see s22(2) of the Family Law Act). In my view, it is quite within her Honour's proper duties to be able to make comments of the societal nature of this as she did in this case.

2. The fact that she then indicates that there are writings of an expert nature that support her views does not, in my view, amount to a denial of natural justice. She is not raising there any issue of contention which she is not giving someone an opportunity to be heard upon. She is simply, in my view, stating the obvious.

TOLCON J I agree that the appeal should be dismissed, and in doing so I adopt the reasons of the presiding judge.